Yellow Cab Co. v. General Lumber Co.

134 S.E. 190, 35 Ga. App. 620, 1926 Ga. App. LEXIS 1035

Opinion

Bell, J.

1. In a suit for damages to the plaintiff’s truck, caused by a collision between the truck and the defendant’s cab, allegations (in the order here stated) that the defendant was indebted to the plaintiff in the amount stated as the damages, “for the reason hereinafter set out,” and that the “negligence of defendant company complained of” was “that the driver of said cab was negligent” in specified particulars, were, as against an oral motion in the nature of a general demurrer, sufficient to show by implication that the driver of the cab was the servant of the defendant, acting within the scope of his employment, at the time and place in question. Otherwise the defendant could not have been indebted, and the driver’s negligence could not have been “the negligence of the defendant company,” as alleged in the petition. See Gilmer v. Allen, 9 Ga. 208 (4) ; Lewis v. Amorous, 3 Ga. App. 50, 53 (59 S. E. 338) ; Gallagher v. Gunn, 16 Ga. App. 600 (85 S. E. 930) ; Southern Paramount Pictures Co. v. Gauldimg, 24 Ga. App. 478 (3) (101 S. E. 311) ; Ryle v. Central &c. Ry. Co., 30 Ga. App. 737 (4) (119 S. E. 342) ; Fielder v. Davison, 139 Ga. 509 (77 S. E. 618) ; S. A. L. Ry. v. Pierce, 120 Ga. 230 (47 S. E. 581) ; Swift & Co. v. Bleise, 63 Neb. 739 (89 N. W. 310, 57 L. R. A. 147) ; 39 C. J. 1352, § 1575. Whether or not the present case may be distinguished from Gardner v. Western Union Tel. Co., 14 Ga. App. 403 (2) (81 S. E. 259), the decision in that ease was by two Judges, and is not binding as authority.

Decided July 20, 1926. Bryan & Middlebrooks, W. E. Burt, for plaintiff in error. Milner & Farkas, contra.

2. A plea by the defendant, which alleged that after the collision and prior to the institution of the plaintiff’s suit the parties entered into “an agreement of settlement in full for the damages sued for in the plaintiff’s petition,” the terms of which were that the plaintiff would pay the defendant for all damages sustained by the defendant as a result of the collision, and that the defendant in turn would pay the plaintiff for the damages sustained by the plaintiff as a result thereof, but which plea, although averring a performance of the agreement by the plaintiff, failed to show performance thereof by the defendant, or that the defendant’s mere promise was made and accepted in satisfaction of the tort, set forth no valid defense, and was properly stricken on motion. Molyneaux v. Collier, 13 Ga. 406 (12) ; Lowry v. Sloan, 51 Ga. 633 (2) ; English v. Reid, 55 Ga. 240 (2) ; B. & W. Ry. Co. v. Clem, 80 Ga. 534 (4) (7 S. E. 84) ; Long v. Scanlan, 105 Ga. 424, 427 (31 S. E. 436) ; Fouché v. Morris, 112 Ga. 143 (37 S. E. 182) ; Kennedy v. Maddox, 15 Ga. App. 684 (84 S. E. 153) ; Spence v. Carter, 33 Ga. App. 279, 283 (125 S. E. 883); 1 C. J. 576.

3. The evidence did not demand the conclusion that the collision was the result of unavoidable accident. The verdict was authorized.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.